Lamb v. Mid Ind. Serv. Co.
| Decision Date | 29 October 2014 |
| Docket Number | No. 49A02–1404–CT–224.,49A02–1404–CT–224. |
| Citation | 19 N.E.3d 792 |
| Parties | Gary LAMB, Appellant–Plaintiff, v. MID INDIANA SERVICE COMPANY, INC., B2 Contractors, LLC, C & M Wrecking Inc., and C & M Trucking & Excavating Inc., Appellees–Defendants. |
| Court | Indiana Appellate Court |
David W. Craig, Scott A. Faultless, Craig Kelley & Faultless, LLC, Indianapolis, IN, Attorneys for Appellant.
Mark D. Gerth, Richard A. Young, Kightlinger & Gray, LLP, Indianapolis, IN, Attorneys for Appellee, Mid Indiana Service Co., Inc.
SHARPNACK
, Senior Judge.
Gary Lamb, while working for Kingdom Electric, a subcontractor together with others of Mid Indiana Service Company, Inc., the general contractor for a construction project, sustained injuries when a trench partially collapsed. Lamb sued Mid Indiana and others to recover damages for his injuries. Mid Indiana moved for summary judgment and Lamb responded. Both parties designated evidence. The trial court granted summary judgment and entered final judgment for Mid Indiana. Lamb appeals. We reverse and remand.
The issue presented is whether there are any genuine issues of material fact shown in the designated evidence which preclude summary judgment for Mid Indiana.
Lamb contends the trial court erred by granting summary judgment in favor of Mid Indiana. The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which can be determined as a matter of law. Sheehan Constr. Co., Inc. v. Cont'l Cas. Co., 938 N.E.2d 685, 689 (Ind.2010)
. Our standard of review is identical to that of the trial court: whether there exists a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Kroger Co. v. Plonski, 930 N.E.2d 1, 4–5 (Ind.2010) ; see also Ind. Trial Rule 56(C). Appellate review of a summary judgment motion is limited to those materials designated to the trial court. Sheehan Constr. Co., Inc., 938 N.E.2d at 688
. In addition, all facts and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. Id.
Lamb's claim against Mid Indiana sounds in negligence. To prevail on a claim of negligence, a plaintiff must show: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff proximately caused by the defendant's breach of duty. Kroger Co., 930 N.E.2d at 6
. Summary judgment is rarely appropriate in negligence cases. Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind.2004). “This is because negligence cases are particularly fact sensitive and are governed by a standard of the objective reasonable person—one best applied by a jury after hearing all of the evidence.” Id.
It is well established in Indiana that an employer or general contractor does not have a duty to supervise the work of an independent contractor to assure a safe workplace and, accordingly, is not liable for the negligence of an independent contractor. Capitol Constr. Servs., Inc. v. Gray, 959 N.E.2d 294, 298 (Ind.Ct.App.2011)
. “The rationale behind this rule is that a general contractor typically exercises little, if any, control over the means or manner of the work of its subcontractors and requires only that the completed work meet the specifications of the owner in its contract with the general contractor.” Stumpf v. Hagerman Constr. Corp., 863 N.E.2d 871, 876 (Ind.Ct.App.2007), trans. denied. However, Indiana case law has recognized five exceptions to this general rule: (1) where the contract requires the performance of intrinsically dangerous work; (2) where one party is by law or contract charged with performing the specific duty; (3) where the performance of the contracted act will create a nuisance; (4) where the act to be performed will probably cause injury to others unless due precaution is taken; and (5) where the act to be performed is illegal. Capitol Constr. Servs., Inc., 959 N.E.2d at 298.
More recently, in Hunt Construction Group, Inc. v. Garrett, 964 N.E.2d 222 (Ind.2012)
, our Supreme Court spoke on the topic of negligence claims against a general contractor or construction manager for jobsite injuries suffered by a subcontractor's employee. There, the Court pointed to this Court's decision in Plan–Tec, Inc. v. Wiggins, 443 N.E.2d 1212 (Ind.Ct.App.1983), as providing what it termed “a good template” for analyzing these types of claims and stated that the inquiry as to the duty owed by the construction manager/general contractor to the employee for jobsite safety is twofold: (1) whether a duty was imposed upon the construction manager by a contract to which it was a party and (2) whether the construction manager assumed such a duty, either gratuitously or voluntarily. Hunt, 964 N.E.2d at 226. Lamb claims neither a duty under any of the five exceptions to the general rule of nonliability nor a duty under the contract; rather, Lamb maintains Mid Indiana assumed a legal duty for his safety by its actions.
Indiana recognizes the imposition of a duty to exercise care and skill upon one who by affirmative conduct assumes to act, even gratuitously, for another. Love v. Meyer & Najem Constr., 950 N.E.2d 7, 10 (Ind.Ct.App.2011)
. “The assumption of a duty creates a special relationship between the parties and a corresponding duty to act in a reasonably prudent manner.” Id. The existence of a duty is generally a question of law for the court to decide. Rhodes, 805 N.E.2d at 386. Sometimes, however, the existence of a duty turns on factual issues that must be resolved by the trier of fact. Id. In such instances, the determination of the existence of a duty is a mixed question of law and fact, which the factfinder ultimately resolves. Love, 950 N.E.2d at 10
.
Mid Indiana contends generally that as a general contractor it owed no duty to provide a safe place to work for Lamb. Lamb maintains that Mid Indiana assumed such a duty by undertaking to dig the trench before Lamb could finish his work, thereby creating an unreasonable risk of injury for Lamb.
Our review of the designated materials in the light most favorable to Lamb reveals the following facts. Mid Indiana was the general contractor for the construction of a convenience store. Mid Indiana's sole employee at the construction site was John Conarro. Among other things, Conarro was responsible for scheduling and coordinating the work of the various subcontractors engaged in the project.
One of the subcontractors was Kingdom Electric whose employee Lamb was the foreman of its workers. Kingdom Electric was performing electrical work on the project. One of Lamb's tasks was to install on the outside wall of the building a CT cabinet through which electricity would be furnished to the interior. Electricity would be supplied to the CT cabinet by an electrical cable to be buried...
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